Citation Nr: 0207116
Decision Date: 07/01/02 Archive Date: 07/10/02
DOCKET NO. 94-37 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a cervical spine
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran had active service from May 1944 to January 1958.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 1993 rating decision of the Roanoke,
Virginia Regional Office (RO) of the Department of Veterans
Affairs (VA) which denied service connection for a neck
condition (traumatic arthritis, C5-6, C6-7). In November
1996 this matter came before the Board and was remanded to
the RO for further evidentiary development. In March 1997 the
veteran moved to Puerto Rico, and his claims folder was
transferred from the Roanoke, Virginia RO to the San Juan,
Puerto Rico RO. The record reflects that the veteran
subsequently moved to Florida and in April 2000 the veteran's
claims folder was transferred to the St. Petersburg, Florida
RO. In November 2000, the Board denied the claim.
Following the Board's November 2000 decision, the appellant
appealed to the U.S. Court of Appeals for Veterans Claims
(Court). In February 2001, while his case was pending at the
Court, the VA's Office of General Counsel filed a Motion
requesting that the Court vacate the Board's decision and
remand the appellant's claim for readjudication. In August
2001, the Court issued an Order vacating the November 2000
Board decision.
FINDING OF FACT
A cervical spine disorder was not present in service;
arthritis of the cervical spine was not manifested within one
year of discharge from service; and a cervical spine disorder
is not otherwise related to service or any event therein.
CONCLUSION OF LAW
The veteran's cervical spine disorder was not incurred in or
aggravated in service, nor may arthritis of the cervical
spine be presumed to have been incurred in active service.
38 U.S.C.A. §§ 1110, 1131, 1154, 5107, 7104 (West 1991 &
Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VCAA
In March 1992, the veteran filed a claim for service
connection for inter alia a neck condition. In March 1993,
the RO denied the claim. The veteran appealed, and in
December 1996, the Board remanded the claim for additional
development. In November 2000, the Board denied the claim.
The veteran appealed to the Court, and in February 2001,
representatives of the Secretary of Veterans Affairs (the
Secretary) filed an Appellee's Motion for Remand and to Stay
Proceedings, asserting that a remand was required for
consideration of certain provisions contained within the
recently enacted Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-4 75, 114 Stat. 2096 (2000). In
August 2001, the Court granted the motion, vacated the
Board's November 2000 decision, and remanded the case to the
Board.
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This law eliminates the concept of a
well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits.
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7,
subpart (a), 114 Stat. 2096, 2099 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991). The Board finds that,
even though the RO did not have the benefit of the explicit
provisions of the VCAA at the time of the decision on appeal,
VA's duties have been fulfilled. First, VA has a duty to
notify the appellant and his representative, if represented,
of any information and evidence needed to substantiate and
complete a claim. 38 U.S.C. §§ 5102 and 5103 (West Supp.
2002). The appellant was notified in the March 1993 rating
decision that the evidence did not show that he had met the
relevant criteria for service connection for his cervical
spine disorder. That is the key issue in this case, and the
rating decision, as well as the statement of the case (SOC),
the May 2000 supplemental statement of the case (SSOC), and
the Board's (vacated) November 2000 decision, informed the
appellant of the evidence needed to substantiate his claim
throughout the period of his appeal. In addition, in a
letter dated in December 1996, the RO requested that the
veteran provide the names and addresses of all health care
providers who had evaluated or treated him for his neck
condition from May 1991 to the present. This letter also
notified the veteran of his duties with regard to the
submission of evidence. In response to the RO's request, the
veteran provided Authorizations for Release of Information
for the following health care providers: the VA medical
facility in Mayaguez, Puerto Rico, the Lebanon, Pennsylvania
VA Medical Center (VAMC), Dr. Roberto A. Garcia, Dr. Antonio
E. Ignacio, and Dr. Manuel Monasterio. In February 1997 the
RO sent letters to each of the health care providers,
requesting the veteran's medical records. A follow-up letter
was sent to Dr. Monasterio in April 1997. However, no
response was received from Dr. Monasterio. In a letter,
dated in April 1997, the RO sent a letter to the veteran
informing him of the evidence that it had requested, and of
his duties with regard to the submission of evidence. Based
on the foregoing, the Board concludes the discussions in the
rating decision, SOC, SSOC, Board decision, and two letters
from the RO to the veteran informed him of the information
and evidence needed to substantiate this claim and complied
with VA's notification requirements.
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate a claim. 38 U.S.C.
§ 5103A (West Supp. 2002). The Board has determined that
this claim may be adjudicated without further development.
The RO has obtained VA and non-VA treatment records, as well
as service medical records from the National Personnel
Records Center. All identified treatment records have either
been obtained, or are unavailable, and the veteran was
notified of identified records which had been requested, but
not received, in the RO's April 1997 letter. The claim was
remanded by the Board for an examination in November 1996.
An examination was subsequently performed, the report of
which includes an etiological opinion. The Board therefore
finds that VA has done everything reasonably possible to
assist him and that there is sufficient evidence of record to
decide his claim properly.
Under the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the veteran in this case. Further
development and further expending of VA's resources is not
warranted.
II. Merits
The veteran asserts that he has a cervical spine disorder as
a result of his service. Specifically, he argues that he
received a blow to his head from a shell fragment in Korea in
1951 which resulted in a cervical spine disorder, to include
arthritis.
With regard to the veteran's shell fragment wound, the Board
notes that in March 1988, the RO denied service connection
for a shell fragment wound. The veteran appealed, and in
October 1989, the Board denied the claim. In its decision,
the Board noted that service medical records, dated in April
1951, indicated that the veteran sustained a lacerating wound
to the forehead while in Korea. The laceration was treated
with a sterile dressing, with no evidence of suturing.
However, the Board determined that the subsequently dated
service and post-service medical records did not show any
complaints or residuals of the laceration, such that a
current disability was not shown.
As an initial matter, the veteran argues that he has a
cervical spine condition related to participation in combat.
In this regard, a service medical report, dated in April
1951, is somewhat difficult to read, but appears to show that
the veteran was serving with an infantry unit, at which time
he sustained a "LWS (presumably "laceration wound, shell")
forehead WIA (wounded in action) [illegible] mine, parallel
38, 1100 hrs 10 April 51." The report indicates that this
injury was incurred in the line of duty, and notes "R.P.H."
(presumably "recommend purple heart"). The report notes
that the veteran was treated with a sterile dressing. The
claims file also includes the veteran's DD Form 214 for the
period from June 1951 to January 1952, which shows that his
awards include the Combat Infantryman Badge (CIB) and the
Purple Heart. The section titled "wounds received as a
result of action with enemy forces" notes a lacerated wound
head shell fragment Korea 11 Apr 51."
The evidence shows that the veteran sustained a laceration to
his forehead, possibly due to fragments from a land mine,
while serving in Korea in April 1951, and that his awards
include the CIB and the Purple Heart. Based on the
foregoing, the Board finds that the veteran participated in
combat. He is therefore eligible for the special
considerations afforded to combat veterans. 38 U.S.C.A.
§ 1154 (West 1991); 38 C.F.R. § 3.304(d) (2001).
In the case of any veteran who has engaged in combat with the
enemy in active service during a period of war, satisfactory
lay or other evidence that an injury or disease was incurred
or aggravated in combat will be accepted as sufficient proof
of service connection if the evidence is consistent with the
circumstances, condition or hardships of such service, even
though there is no official record of such incurrence or
aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d);
see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994).
The effect of this law is that service connection will not be
precluded for combat veterans simply because of the absence
of notation of a claimed disability in the official service
records. The law does not, however, create a presumption of
service connection, and service connection remains a question
which must be decided based on all the evidence in the
individual case. See Smith v. Derwinski, 2 Vet. App. 137
(1992).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition,
certain chronic diseases, including arthritis, may be
presumed to have been incurred during service if they become
disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
Presumptive periods are not intended to limit service
connection to diseases so diagnosed when the evidence
warrants direct service connection. 38 C.F.R. § 3.303(d).
The veteran's service medical records do not show that in
April 1951 the veteran sustained a lacerating wound to the
forehead, which was treated with a sterile dressing. On
reenlistment examination in December 1951 the veteran's spine
was evaluated as clinically normal, and there were no
complaints or findings made pertaining to his cervical spine.
His separation examination report, dated in November 1957,
shows that there were no complaints or findings made
pertaining to the veteran's cervical spine. He complained of
occipital headaches of undetermined cause. On examination
his spine was evaluated as clinically normal.
The post-service medical evidence includes a VA treatment
report, dated in April 1983, which shows that the veteran
complained of neck and shoulder pain. The diagnosis was
myalgia. A report, dated in September 1984, shows that he
was treated for complaints of back and neck aches, and the
diagnosis was neck pain, C6-C7. An X-ray report for the
cervical spine, dated in September 1984, shows anterior
osteophytes of C5, C6, and C7, and narrowing of the C6-C7
intervertebral space, and otherwise an essentially negative
cervical spine. The veteran subsequently underwent several
physical therapy sessions in October 1984, and at the end of
October 1984 he reported feeling some relief from his neck
pain. Examination showed he had cervical tenderness, and
full range of motion of the neck.
An X-ray report for the cervical spine, dated in March 1992,
interpreted by Moises O. Acevedo, M.D., contains an
impression of moderate to severe diffuse degenerative changes
most pronounced at the C5-C6 and C6-C7 levels, loss of height
of C5 and C6, disc space narrowing at C5-C6 and C6-C7, and
neural foraminal narrowing at C5-C6 and C6-C7.
A medical report, dated in March 1992, from Manuel
Monasterio, M.D., indicates that the veteran reported
sustaining an injury to his forehead during service as a
result of a mine explosion, and that at the time he had only
"minor lacerations" to the head. The report notes that
"[n]ow, years later, [the veteran] has developed cervical
pain with C5-C6, C6-C7 degenerative changes" which could be
the result of this injury. Dr. Monasterio indicated that the
veteran's traumatic arthritis of the cervical spine was
secondary to the injury during the Korean war. He further
stated that the veteran's "traumatic arthritis of the
cervical spine should be service connected to the described
incident."
A medical report, dated in March 1992, from Dr. Roberto A.
Garcia, shows that the veteran complained of posterior neck
pain for the past six months. X-rays of the cervical spine
were reported to show severe degenerative changes with neural
foraminal narrowing at C5-C6, C6-C7. It was noted that the
veteran was started on a physical therapy program in March
1992 and that after 10 physical therapy treatments, he
continued with "more or less" the same neck pain and limited
range of motion.
A medical report, dated in February 1993, from Dr. Monasterio
shows that he states that it is "an accepted fact" by VA that
the veteran "sustained an injury to the forehead as a result
of a mine explosion." Dr. Monasterio further indicated that
the fact that seven months later (in November 1957) the
veteran "did not have any neck complaints did not mean that
his present condition [was] related to this injury." Dr.
Monasterio stated that the veteran's traumatic arthritis of
the cervical spine resulted from his forehead injury.
The claims file includes VA treatment records, dated between
September 1984 and August 1992, which show that the veteran
received treatment, including physical therapy, for
complaints of neck pain. In January 1992 he reported having
recurrent low back pain since 1955, and claimed that this
condition was aggravated one month prior. In July 1992 he
reported having recurrent neck and low back pain for over 38
years, and claimed that his condition had been aggravated in
the past three weeks.
In a letter, dated in July 1993, Dr. Monasterio states that
the veteran has severe traumatic arthritis of the cervical
spine which developed as a result of a forehead injury which
he sustained from a mine explosion. Dr. Monasterio also
notes that this degenerative process started to give the
veteran symptoms later in life, and "the fact that he was not
having pain from 1957 to any other date does not prove nor
disprove the origin of his problem," which Dr. Monasterio
stated was traumatic and originated in service in April 1957.
In a letter, dated in July 1993, Antonio E. Ignacio, M.D.,
states that he treated the veteran between 1969 and 1970 for
pains over the neck and the left side of the head and face.
Dr. Ignacio stated that "this may be related to the injuries
sustained during the war in Korea" when the veteran was in
service.
The claims file includes treatment records from the Lebanon
VA Medical Center (VAMC) which show that between 1984 and
1993 the veteran was treated on several occasions for
complaints of neck pain. An X-ray report for the cervical
spine, dated in June 1993, shows degenerative disc disease
and degenerative osteoarthritis extending from C4 distally
with spur formation, disc space narrowing and degenerative
osteoarthritis. It was also noted that minimal spurring
impinged on the neural foramina bilaterally. In December
1993 the assessment was cervical spondylosis.
Received from Dr. Ignacio's office in February 1997 was a
notation indicating that the veteran had not been a patient
of Dr. Ignacio's for 20 years and that they no longer had the
veteran's chart.
Received in March 1997 from Dr. Roberto A. Garcia was a
treatment record, dated in March 1992, which shows that the
veteran was seen for several complaints, including neck pain,
and that the diagnoses included cervical myositis.
Received in May 1997 from the Mayaquez, Puerto Rico VA clinic
were treatment records showing that the veteran was treated
on several occasions for complaints of neck pain.
On VA examination in May 2000 the veteran reported that in
1951 he had a laceration of his scalp with a shell fragment
while he was in the Korean War, and that he started having
complaints of neck pain in 1965. He denied any paresthesias
or pain in the radicular distribution in his upper
extremities or any weakness or loss of function. X-rays of
the cervical spine, dated in October 1999, showed severe
degenerative disk disease throughout the subaxial spine,
cervical spine, worse at the C4-5, C5-6, C6-7, with loss of
lordosis, multiple osteophyte formation, and collapse. The
diagnoses were cervical spondylosis and laceration of the
parieto-occipital scalp with fragment. The VA examiner's
assessment was that X-rays of the cervical spine showed
moderate to severe degenerative disk disease and cervical
spondylosis. The VA examiner concluded that the veteran's
cervical spondylosis was irrelevant to the laceration of his
scalp, and that there was no sound medical basis or principle
which stated that scalp laceration by a fragment of a bullet
can cause severe cervical spondylosis 30 to 40 years after
the incident. The examiner also indicated that there was no
such relationship of a one-time trauma causing progressive
arthritis in any part of the spine or exaggerating the
natural course of arthritis in the spine, which was in
contrast to repeated traumas which could cause
osteoarthritis. The examiner reiterated that the case of a
single laceration of the scalp by fragment did not "make any
sound medical principle for the cause of progressive cervical
spondylosis in years to come after the incident." The
examiner also disagreed with the doctors who stated that the
veteran's laceration of the scalp could be a cause of the
veteran's cervical spondylosis.
The Board has determined that the preponderance of the
evidence is against the veteran's claim. In this case,
service medical records indicate that he sustained a shell
fragment wound to his forehead in April 1951. However, there
was no evidence of suturing, and all service medical records
dated subsequent to April 1951 are silent as to a forehead
laceration, or cervical spine symptoms. Service medical
records contain no evidence of degenerative joint disease of
the cervical spine. Therefore, the claimed condition is not
shown to have been chronic during service. See 38 C.F.R.
§ 3.303. There is no evidence that arthritis of the cervical
spine became manifest to a compensable degree within one year
of service to support service connection on a presumptive
basis. See 38 C.F.R. § 3.307, 3.309. In addition, Dr.
Ignacio's letter indicates that he treated the veteran for
neck pain beginning in 1969. Assuming arguendo that this is
evidence of a chronic cervical spine disorder at that time,
the first evidence of a cervical spine disorder comes
approximately 11 years after separation from service, and
approximately 18 years after the veteran's forehead
laceration. This lengthy period of time without treatment
weighs heavily against the claim. See Maxson v. Gober, 230
F.3d 1330 (Fed. Cir. 2000).
In reaching this decision, the Board has considered the
medical "nexus" opinions from Dr. Monasterio and Dr. Ignacio.
However, the probative value of Dr. Ignacio's July 1993
opinion (that the veteran's neck pains "may be related to"
the injury in service), and Dr. Monasterio's March 1992
opinion (that the veteran's cervical pain and degenerative
changes "could be the result of" the injury to his forehead
in service), are weakened by the fact that they are
speculative in their terms. The claims file includes a more
affirmatively stated opinion from Dr. Monasterio, dated in
1993. However, none of these opinions are accompanied by a
rationalized explanation, or other indicia of reliability.
In this regard, none of the opinions from Dr. Monasterio or
Dr. Ignacio appear to have been based on a review of the
clams file, or any other detailed and accurate medical
history. See Gabrielson, supra; see also Swann v. Brown, 5
Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177,
180 (1993). In fact, a February 1997 note from Dr. Ignacio's
office stated that the veteran had not been a patient for 20
years and that the veteran's chart was no longer available.
In contrast, the May 2000 VA examination report shows that
the examiner reviewed the veteran's claims folder prior to
affording him an examination. The examiner concluded that
the veteran's cervical spondylosis was irrelevant to the
laceration of his scalp and indicated that there was no sound
medical basis or principle which stated that scalp laceration
by a fragment of a bullet can cause severe cervical
spondylosis 30 to 40 years after the incident. The VA
examiner also indicated that there was no such relationship
of a one-time trauma causing progressive arthritis in any
part of the spine or exaggerating the natural course of
arthritis in the spine, which was in contrast to repeated
traumas which could cause osteoarthritis.
It appears that only the May 2000 VA examiner had the benefit
of reviewing the veteran's complete claims folder, examining
the veteran, and that he reviewed Dr. Ignacio's and Dr.
Monasterio's opinions. The Board therefore finds that the
May 2000 opinion from the VA examiner outweighs the opinions
of Dr. Ignacio and Dr. Monasterio, and that the preponderance
of the evidence is against the claim. Accordingly, the
veteran's claim must be denied.
The Board has considered the veteran's written testimony
submitted in support of his argument that he has a cervical
spine disorder that should be service connected. His
statements are not competent evidence of a diagnosis, nor are
they competent evidence of a nexus between the claimed
condition and his service. Although lay evidence is
acceptable to prove the occurrence of an injury during active
duty or symptomatology over a period of time when such
symptomatology is within the purview of or may be readily
recognized by lay persons, lay testimony is not competent to
prove a matter requiring medical expertise, such as an
opinion as to diagnosis or medical causation. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494-495 (1992). In reaching
this decision, the Board has also noted, as previously
discussed, that the veteran participated in combat and that
he is eligible for the special considerations afforded to
combat veterans. However, the Board has determined that his
claim must be denied as the preponderance of the evidence
shows that he does not have a cervical spine disorder as a
result of his service. In such cases, the Court has held
that 38 U.S.C.A. § 1154 does not address the issue of whether
there is a nexus to service, which generally requires
competent medical evidence. Caluza v. Brown, 7 Vet. App.
498, 507 (1995).
When all of the evidence is assembled, the Board is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a fair preponderance
of the evidence is against the claim, in which case the claim
is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Accordingly, as the Board finds that the preponderance of the
evidence is against the veteran's claim for service
connection for a cervical spine disorder, the doctrine of
affording the veteran the benefit of the doubt is not for
application.
ORDER
Service connection for a cervical spine disorder is denied.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.